Judicial Restraint and Overreach: COVID-19, Courts, and the Limits of Power
As India battled the second wave of COVID-19 in 2021, the judiciary found itself at the center of public attention not for its judgments alone but for its fiery remarks. From the Delhi High Court warning that it would “hang any person” obstructing oxygen supplies, to the Madras High Court holding the Election Commission “singularly responsible” for the surge in infections, the courtroom language of that period revealed a judiciary unafraid to speak sharply in moments of national crisis.
In April and May of 2021, as hospitals ran out of oxygen and crematoriums overflowed, courts across India took up urgent petitions seeking state intervention. The Delhi High Court’s exchanges with government lawyers became headline material. On May 4, the court rebuked the Union Government for failing to supply Delhi with its allocated 700 metric tonnes of oxygen, warning, “you can put your head in sand like an ostrich, we will not.” These comments reflected deep judicial frustration but also sparked a larger debate about the role of courts in moments of executive failure.
The Madras High Court went even further, holding the Election Commission responsible for “murder” for failing to enforce COVID-19 protocols during the polls. The Supreme Court, while sharing the concern over public safety, later called such remarks “harsh and inappropriate,” reminding judges that restraint and moderation must accompany the exercise of judicial power.
Yet, the episode did not end there. On June 1, 2021, another division bench of the Delhi High Court stirred controversy by suggesting that younger patients should be prioritized over the elderly in the allocation of Amphotericin-B, a life-saving drug for mucormycosis, on the ground that “the young are the future of the country.” Critics called this statement discriminatory and beyond the court’s jurisdiction.
The Question of Restraint
Such observations, dramatic as they are, raise a deeper constitutional question: What drives the higher judiciary to make sweeping or even intemperate remarks? Is it judicial overreach born of frustration, or a symptom of a system that too often looks to the courts to fix governance failures?
The Constitution of India envisages a delicate balance among the three branches of government—executive, legislature, and judiciary. The courts are tasked with interpreting laws, not making them. Yet, as public trust in institutions fluctuates, courts often step in where the government is seen to falter.
The Supreme Court itself has repeatedly cautioned against such overreach. In Census Commissioner v. R. Krishnamurthi (2015) 2 SCC 796, the apex court ruled that policy-making lies squarely within the domain of the executive and legislature. It warned that courts must not “plunge into policy-making by adding something to policy by way of issuing a writ of mandamus.” Echoing the wisdom of Francis Bacon, the judgment reminded that “judges ought to be more learned than witty, more reverend than plausible, and more advised than confident.”
Similarly, in Union of India v. Indian Radiological & Imaging Association, the Supreme Court observed that judicial review “cannot extend to reappreciating the efficacy of a legislative policy.” In other words, while courts can strike down unconstitutional laws, they cannot substitute their wisdom for that of the elected legislature.
The Balance of Power
India’s Constitution begins with the words “We, the People of India.” It is the people who delegate power to their elected representatives through elections, and it is these representatives who are accountable to the public not to the judiciary for the policies they frame. The courts exist to interpret the Constitution and ensure legality, not to govern.
However, as the COVID-19 crisis revealed, when administrative paralysis meets human suffering, the moral pull to act can blur these constitutional boundaries. The judiciary’s activism during the pandemic ordering oxygen allocations, questioning vaccination policy, and directing medical prioritization was seen by some as lifesaving, and by others as an intrusion into executive governance.
Chief Justice of India D. Y. Chandrachud’s observation in 2021 that “the mere right to change the ruler once every few years need not be a guarantee against tyranny of the elected” underscores the tension. While courts must guard against tyranny, they too must avoid becoming unaccountable centers of unelected power. Judicial energy, critics argue, would be better spent addressing the staggering backlog of cases over 5 crore nationwide than venturing into areas constitutionally reserved for elected governments.
A Call for Reflection
Judicial commentary can inspire, alarm, or amuse but its power is immense. A single sentence from the bench can dominate headlines and shape public discourse. With that power comes responsibility. The words of Bacon, quoted centuries ago, remain strikingly relevant today: Judges must be “lions under the throne” strong, but always beneath the sovereign will of the Constitution and the people it represents.
The pandemic may have tested every institution of governance, but it also reaffirmed an old truth: that justice, to endure, must not only be done but be seen to be tempered with restraint, humility, and wisdom.
Disclaimer: This content has been produced and published by Local Law Media Network for informational purposes only. It does not constitute legal advice. The views and opinions expressed are independent and do not reflect the position of any legal practice or organization associated with the individuals mentioned.
